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384 F.

2d 602

UNITED STATES of America, Appellee,

Frank GUGLIELMINI and John Testa, Appellants.
No. 468, Docket 31136.

United States Court of Appeals Second Circuit.

Argued May 18, 1967.
Decided Oct. 4, 1967.

Ronald Gene Wohl, Asst. U.S. Atty. (Joseph P. Hoey, U.S. Atty., David P.
Steinmann, Asst. U.S. Atty., and Joseph Lynch, Washington, D.C., on the
brief), for appellee.
Jerome Lewis, New York City, for appellants.
Before LUMBARD, Chief Judge, MOORE, Circuit Judge, and BONSAL,
District Judge.1
LUMBARD, Chief Judge:

Frank Guglielmini and John Testa appeal their convictions by a jury after trial
in the Eastern District of New York in November 1966 on three counts for
concealing assets of a bankrupt, and of Guglielmini on an additional count for
concealing records, in violation of 18 U.S.C. 152, for which the district court
imposed concurrent five-year prison terms and five years' probation to follow
service of sentence.

The appellants allege that they were denied a fair trial by the conduct of the
trial judge and the prosecutor, and they complain of errors in the court's charge.
Our study of the record shows substantial support for their claims. As we find
that the cumulative effect of these errors was such as to render it highly
doubtful that the appellants enjoyed the fair trial to which they were entitled,
we reverse the convictions.

Simply stated, the government's case was that Frank Guglielmini and John
Testa ran the business of the Miracle Supermarket, owned by Frank

Guglielmini's brother, John Guglielmini, for the purpose of defrauding creditors

and concealing the assets and books of the business from the receiver in

The indictment charged that on April 1, 1960, an involuntary petition in

bankruptcy was filed against Frank Guglielmini's brother, John-- also known as
John Papa and doing business as the Miracle Supermarket in Brooklyn, New
York,-- who thereafter on June 6, 1960 filed a voluntary petition in bankruptcy
under Chapter XI of the Bankruptcy Act and was adjudicated a bankrupt on
September 28, 1960. It was charged that commencing about February 1, 1960,
Frank Guglielmini and John Testa were engaged in the management of the
business, but that only a part of the assets were made available to the receiver,
although the bankrupt had substantial property, largely foodstuffs and cash
receipts from sales, and that Frank Guglielmini and John Testa knowingly and
fraudulently concealed from the receiver property and cash receipts of
approximately $39,000.

A second count charged knowing and fraudulent concealment of the same

property from the creditors of the bankrupt, and a third count charged that in
contemplation of a bankruptcy proceeding, and with intent to defeat the
bankruptcy laws, the defendants knowingly and fraudulently transferred and
concealed the same property. A fourth count charged that the two defendants,
after the commencement of the bankruptcy proceeding, knowingly and
fraudulently concealed the books, records, and documents of the bankrupt from
the receiver.

The proof amply supported the verdicts of guilty. In summary, the government
showed that the defendants ordered approximately $48,000 worth of groceries,
meat and fowl in March 1960, and that less than half of it was in the bankrupt's
inventory on April 2, 1960 or accounted for by bank deposits in March.
Meanwhile merchandise was sold, below cost, for cash which was not
deposited in the business. Cf. United States v. Olweiss, 138 F.2d 798 (2 Cir.
1943), cert. denied, 321 U.S. 744, 64 S.Ct. 483, 88 L.Ed. 1047 (1944). In
addition, there was evidence that the books of account were given to Frank
Guglielmini prior to the bankruptcy and that they were never produced.

The appellants complain that during the ten days of trial the trial judge by his
'reproachful, acrimonious and apparently baiting criticism' of Mr. Lewis,
counsel for Frank Guglielmini, denied the defendants the effective assistance of
counsel and conveyed to the jury the impression that he, the judge, 'entertained
feelings of suspicion and hostility towards the defense.'

The record contains numerous instances of repartee between the judge and
defense counsel. Most of this was wholly unnecessary and much of it could
only have served to demean counsel and cast an unfavorable light on the
defense. For example, the court, on the third and fourth days of the trial,
brouhgt out in the presence of the jury that the Assistant United States Attorney
was trying his first criminal case and that he was a 'young boy' compared to Mr.
Lewis, to whom the court said (R. 502-03):

'The Court: You must remember that you have tried criminal cases for years
and years and years, is that right? And both of us have some experience in
trying cases for many years, and we are much older than this young boy who is
trying this case.


'Mr. Lewis: But he is very competent young boy who may be better than a
decrepit old man.


'The Court: For this first criminal case he is trying--


'Mr. Lewis: He's tried many civil cases and has been here many years.


'The Court: I said for the first criminal case he is trying we can't be too critical,
but when it comes to some of the jargon, he may not be as adept as those with
more experience * * *.'


Later, during a conference at which the jury was not present, counsel moved
for a mistrial because of the court's remarks.


The court's remarks were wholly unnecessary. While the trial judge
undoubtedly thought he was merely redressing the balance between youth and
experience, the obvious effect of such colloquies was to place the defense at a
disadvantage in the eyes of the jury, as it cast the prosecutor in the role of a
young neophyte David contesting against a practiced Goliath.


These were not the only unnecessary and disparaging remarks by the court. For
example, after a question asked by Mr. Lewis had been objected to as
argumentative, the trial judge said, 'Your time to sum up, Mr. Lewis, will come
later on' (R. 111). This remark was repeated on numerous occasions during the
trial. Again, these remarks can only have served to discredit the defense in the
eyes of the jury. To the same effect was the judge's discussion, in the presence
of the jury, of the Jencks Act, 18 U.S.C. 3500, and the type of material that is

producible thereunder (R. 285-290, 508-510). This discussion also discredited

the defense and may have led the jury to believe that the defense was making
demands which improperly imposed upon the government.

The trial judge's frequent participation in the trial, by questions and comments,
also tended to give the jury the impression that he credited the prosecution and
disbelieved the defense. This was particularly noticeable in his frequent and
sometimes lengthy interruption of Frank Guglielmini's testimony. There are few
pages of this defendant's testimony, which runs from page 971 to page 1146 of
the record, which are free of some question by the court, and there are
numerous instances where the court took over the cross-examination from the
prosecutor for extended periods. While the trial judge may, and indeed should,
take an active part in the trial where necessary to clarigy evidence and assist the
jury, the persistent questioning the trial judge conducted in this case, together
with his comments to defense counsel, conveyed to the jury far too strong an
impression of his belief in the defendants' guilt. See, e.g., United States v.
Persico, 305 F.2d 534 (2 Cir. 1962); United States v. DeSisto, 289 F.2d 833 (2
Cir. 1961).


Few claims are more difficult to resolve than the claim that the trial judge,
presiding over a jury trial, has thrown his weight in favor of one side to such an
extent that it cannot be said that the trial has been a fair one. Where there is any
substance to such a claim the reviewing court must examine the entire record
and attempt to determine whether the conduct of the trial has been such that the
jurors have been impressed with the trial judge's partiality to one side to the
point that this became a factor in the determination of the jury. This we have
done. A reading of the record leaves us with the firm impression that the
defendants did not receive the fair trial to which our law entitles them.


Frank Guglielmini also complains of the prosecutor's references to his

connection with another bankruptcy fraud as unnecessary and prejudicial. We
agree. Guglielmini, having taken the stand in his own behalf, was crossexamined regarding his prior employment. When he could not recall where he
worked in 1958, the prosecutor asked him: 'Well, maybe I can refresh your
recollection. Did you testify in this court in a bankruptcy fraud trial--' Counsel's
immediate objection was overruled by the court, and the prosecutor brought out
the name of the defendant at that trial, one Sal Bilello, that it involved the Top
Sail Supermarket, that the defendant had testified at the prior trial, and that as
meat manager in that market he had done the 'same things that you are doing
now' (R. 1089-90).


It was error for the prosecutor to link the defendant Guglielmini to a prior

bankruptcy fraud trial when its only relevance was to bring out what he had
been doint in 1958. This evidence was not, of course, admissible under the rule
that prior criminal acts of a defendant may, if sufficiently similar, be proved as
some evidence of his guilty knowledge or intent in committing the act charged.
Compare, e.g., United States v. Klein, 340 F.2d 547 (2 Cir.), cert. denied, 382
U.S. 850, 86 S.Ct. 97, 15 L.Ed.2d 89 (1965); United States v. Ross, 321 F.2d
61, 67 (2 Cir.), cert. denied, 375 U.S. 894, 84 S.Ct. 170, 11 L.Ed.2d 123
(1963). The purpose in putting the question could only have been to point out to
the jury that the defendant was well acquainted with bankruptcy frauds. The
trial judge erred in overruling counsel's prompt objection.

Moreover, the prosecutor later compounded his improper questioning by

referring to the incident in his summation, in these words (R. 1291-92):


'Now, he (Frank Guglielmini) testified he was the meat manager for a Sal
Bilello in March of 1958. Once again before Easter. He testified in that trial as
a government witness. He was the meat manager. Is that where he learned this
scheme? Is that where he learned about building up the business and using the
bankruptcy laws?'


Again counsel's timely objection and motion for mistrial were overruled. The
trial judge erred in not sustaining the objection and directing the jury to
disregard the prosecutor's improper and unfair argument. As the principal issue
in the case was the intent of the defendants, it is clear that permitting the
intrusion of this irrelevant matter, which involved nothing more than Frank
Guglielmini's employment by someone who was later tried for bankruptcy
fraud, was a substantial error. The strong inference of guilty knowledge which
the prosecutor's argument communicated to the jury could well have been a
factor in their finding Guglielmini guilty. Compare, e.g., United States v.
Tomaiolo, 249 F.2d 683, 688-690 (2 Cir. 1957); Nigro v. United States, 117
F.2d 624, 631-632, 133 A.L.R. 1128 (8 Cir. 1941).


The appellants complain of the court's instructions to the jury regarding

reasonable doubt. The court pointed out the presumption of innocence and the
fact that it persists until 'overcome by evidence which satisfies you beyond a
reasonable doubt as to the defendant's guilt.' The court further stated that the
defendant did not have to prove his innocence, and that the burden was on the
government 'to prove beyond a reasonable doubt each essential element
necessary to constitute the crime charged.'
The charge continued:


'Now, what is reasonable doubt? To justify you in returning a verdict of guilty

against either one of these defendants on any one of these counts, the evidence
that you believe must be of such a character as to satisfy your judgment to the
exclusion of every reasonable doubt. I underline reasonable doubt so that if you
can reconcile the evidence with any reasonable hypothesis consistent with a
defendant's innocence, then it is your duty to do so, and in that case find that
defendant not guilty under that count of the indictment. In fact, if you find a
probability of innocence, reasonably, then you have a reasonable doubt. I didn't
say positively. I said probability. So if after weighing all of the proofs and
looking only to the evidence, the proofs you impartially and honestly entertain
the belief that the defendants or either of them may be innocent of any one of
the offenses charged in this indictment, then as to that indictment, that
defendant is entitled to the benefit of that doubt, if you have that kind of a
doubt, and then as to that count, that defendant should be acquitted.'


While it may seem that a juror listening to the whole of the judge's instructions
would understand the government's burden and the factors to be considered in
assessing the reasonableness or unreasonableness of any doubt, we think the
judge's statement that a 'probability of innocence' constitutes reasonable doubt
may have confused one or more jurors. Putting the test in terms of a 'probability
of innocence' implies that a reasonable doubt exists only when the jury finds it
more likely than not that the defendants are innocent. This would appear to put
the burden of proving their innocence on the defendants or at least to reduce the
prosecution's burden from 'beyond a reasonable doubt' to merely a
preponderance of the evidence. It is sufficient for a finding of 'reasonable doubt'
that there exist an honest, substantial misgiving founded on the evidence and
not on mere speculation; that misgiving need not be so strong as to lead to the
belief that innocence is more likely than not.


It may well be that appellate courts have come to place too much reliance on
the use of certain words in instructing juries about reasonable doubt. But we do
not know how experienced and sophisticated each of the jurors may be in these
matters; and we can never know just what words or thoughts are remembered
and become the guides which weigh most heavily in the jury's deliberations. It
is quite possible that one or more jurors may have carried with them into the
jury room the idea that the test is the probability of innocence and that they
concluded that, in the absence of such probability, there was no reasonable
doubt and it followed that guilt was established. As we cannot know to what
extent this confusing element of 'probability of innocence' may or may not have
been corrected by the remainder of the judge's charge on reasonable doubt, we
hold that such instruction was error. Cf. United States v. Persico, 349 F.2d 6 (2
Cir. 1965).


We have examined the numerous other claims of error, but find that they do not
merit discussion.


We do not hold that any one of the errors committed during the trial would have
required reversal of the convictions. We do hold that, occurring at the same
trial, the total effect of the errors we have found was to cast such a serious
doubt on the fairness of the trial that the convictions must be reversed.
MOORE, Circuit Judge (dissenting):


The majority concede that 'The proof amply supported the verdicts of guilty.'
Thus, in theory at least, the defendants were convicted by a jury of their peers
upon ample proof-- the accepted American system for meting out justice for the
commission of crimes. Why then the reversal? It is because the majority decide
that in appellate retrospect the trial game has not been played with the niceties
which they prefer should have been observed during the contest. In my opinion,
the result reached and the reasons here stated have the effect of giving judicial
sanction to trial tactics of skillful defense counsel-- additions to the bag of legal
tricks already possessed-- which remove the trial of criminal cases further and
further from the search for the truth (as proclaimed from the platform) and
reduce it (in the arena where the contest is actually held) to an endeavor to
strive for, and even create, reversible error. These tactics have been the
'hallmark' of many of successful defense advocate for generations. Why we
now bestow upon such tactics reversal status, I cannot understand.


In this specific situation, as gleaned from the pages of a printed record and from
our own knowledge of the participants, which cannot and should not be erased
so long as we are aware of personalities in our own circuit, for two and one-half
weeks the jury, the judge, the prosecutor and defense counsel had more than an
ample opportunity to measure the mannerisms and characteristics each of the
other. First, the jury: observing the entire scene from its jury box, entrusted
with the ultimate resolution of the facts based upon their individual conclusions
and the impressions made (never to be revealed) by every happening in the
courtroom. The judge: every judge has his own individual manner of
conducting a trial and, of necessity, must have great leeway in so doing. Even
appellate decisions cannot reduce the judicial personality to a common
colorless denominator. In this particular case, the judge, as has been his wont
during his tenure in office, followed the case closely and took an active part
therein. However, whatever he did or said in the presence of the jury was
undoubtedly weighed by the jury along with all other factors in evaluating his
personality. And as long as the jury system endures, it is premised on their
strict adherence to the admonition, here properly given in the charge, that: 'You

are not to construe that (questions by the judge) at all as indicating that the
Judge has any ideas about who should prevail in this case at all. It is done for
the purpose where the Court thinks it appropriate to make something clear, and
that is all.' The prosecutor: it scarcely required characterization of the
prosecutor as a 'young boy' to reveal this fact to the jury. Judges may well take
judicial notice of the fact that juries can distinguish between young and old.
The majority stress the fact that 'The court's remarks (youth and first criminal
trial) were wholly unnecessary.' The majority then step (figuratively) into the
jury box and conclude, with more assurance than I can muster, that 'the obvious
effect of such colloquies was to place the defense at a disadvantage in the eyes
of the jury, as it cast the prosecutor in the role of a young neophyte David,
contesting against a practiced Goliath.' I would doubt that even expert
psychologists would say that the jury's collective mind was so diverted from the
ample proof relevant to guilt that this comment by the trial judge tipped the
scales against the defendants. If a principle of law is to evolve that any case
tried by a young man as his first criminal case calls for reversal, young
prosecutors will indeed have difficulty breaking into the field. Furthermore, it
must be remembered that David had certain assistance beyond the powers of his
stripling body1 even as the prosecutor here had such assistance as the
righteousness of the facts-- at least in the eyes of the jury-- afforded. The
defense counsel: experienced, resourceful, rarely second-best in courtroom
repartee, a Goliath not even stunned by the prosecutor David's slingshot stone,
capitalized well on his contretemps with the trial court-- witness his success
with the majority here who apparently believe that a trial judge's efforts to
restrain counsel from making jury speeches during questioning or while
making an objection should be discouraged. Yet the practice varies widely:
many a trial judge will not permit counsel any leeway whatsoever in their
forensic attempts to reach the jury by these means while others prefer to have
grounds stated.

The incident involving Frank Guglielmini's former employment might well

have been omitted, but to say that it 'could well have been a factor in their (the
jury's) finding Guglielmini guilty' scarcely is consistent with the majority's
opinion of ample proof to sustan the conviction. If their conclusion had been
that the facts establishing guilt were so weak or inconclusive that such
testimony might have tilted the scale, the argument would have greater
applicability-- but their own conclusion is to the contrary.


This leaves as the only point of possible substance the 'reasonable doubt'
charge. Some day the courts may recognize the utter impossibility of conveying
metaphysical concepts to a jury and approve a simple charge, if charge be
needed at all, such as 'reasonable doubt is a doubt based on reason.' Such

simplicity, of course, might well be anathema to the Law-- hence, clarity (or
probably greater confusion) is supplied by such cliches as 'not a whimsical
doubt,' 'not a capricious doubt,' 'the kind of doubt a juror would have in his
everyday affairs' and all the other valiant efforts trial judges make to
accomplish the impossible. Appellate courts also take refuge in cliches in
saying that reading the charge as a whole, the jury obtained a general idea of
what they were supposed to do or, if they disagree with the jury, by holding
that the jury was obviously misled. Even reading the portions of charge quoted
by the majority (and the charge as a whole), there can be no 'reasonable doubt'
that the jury obtained a fair idea of their responsibility-- in fact, the 'probability
of innocence' comment may well have added to, rather than subtracted from,
the prosecution's burden.

However, in reading the charge as a whole, the emphasis placed by the trial
judge on reasonable doubt was more than protective of appellants' interests.
First, the presumption of innocence 'goes with the defendant from the
beginning to the end of the trial and prevails until, if that happens, unless and
until that presumption is overcome by evidence which satisfies you beyond a
reasonable doubt as to the defendant's guilt' and, further 'you don't convict
unless you believe that either one of these defendants on any count is guilty
beyond a reasonable doubt.' The judge then elaborated on 'reasonable doubt' as
is custmoary in practivally all 'reasonable doubt' charges, for example,
'reasonable doubt does not mean speculative notions or possibilities resting
upon mere conjecture, mere suspicion, mere guesswork, mere surmise, not
arising or deducible from the proof or that want of proof'; it is 'an honest,
substantial misgiving generated by the evidence, or want of evidence' and then
the court gave the rather standard admonition that their doubt should be based
upon 'an abiding conviction as you would be willing to act upon as to the most
weighty and important affairs of your own life,' and that then (i.e., when free
from reasonable doubt) and 'only then' would the jury be justified in convicting.
In my opinion, the charge conveyed the substance of reasonable doubt as well
as is humanly possible. The addition of the hundreds of synonyms to be found
in Roget's Thesaurus under 'reasonable' and 'doubt' would not have added to the
definition which the trial judge was endeavoring to convey.


Finally, the reading of this 1,414-page record leads me to the conclusion that it
would be quite presumptuous to hold that the jury came to its determination of
guilt because it was 'impressed with the trial judge's partiality to one side * * *.'
Nor do I believe that appellate courts should speculate as to the basis for the
jury's conclusions and then act on the assumption that they know. If courts on
appeal inject this unknown element into their decisions, then trial judges will
have to become mere figureheads. They will participate in the trial at their peril.

Knowing this, astute defense counsel will have still another avenue, along with
possible reversible error can be found because that which succeeds here today
should succeed in the future.

I would affirm.

Of the Southern District of New York, sitting by designation

I. Samuel, ch. 17, 45-50